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Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook Dec 2006

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

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This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court ...


Materiality And Social Change: The Case For Replacing "The Reasonable Investor" With "The Least Sophisticated Investor" In Inefficient Markets, Margaret V. Sachs Dec 2006

Materiality And Social Change: The Case For Replacing "The Reasonable Investor" With "The Least Sophisticated Investor" In Inefficient Markets, Margaret V. Sachs

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The current materiality standard for federal securities fraud is a mid-twentieth-century construct that fails to accommodate certain twenty-first century realities. This Article argues that its reach should be restricted to preserve it for the many circumstances in which it continues to function well.

The current standard measures materiality from the standpoint of "the reasonable investor," a savvy person who grasps market fundamentals. This standard has a fatal flaw: its inability to protect unsophisticated investors who are duped by implausible falsehoods in inefficient markets. This flaw can no longer be ignored given Internet and telemarketing securities fraud and its many unsophisticated ...


After The Catastrophe: Disaster Relief For Hospitals, Elizabeth Weeks Leonard Dec 2006

After The Catastrophe: Disaster Relief For Hospitals, Elizabeth Weeks Leonard

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Disaster planning for health care providers following the September 11, 2001, terrorist attacks and, more recently, Hurricane Katrina, focuses on preparing hospitals and other emergency services to respond to victims' medical needs. But little attention has been paid to the challenges that providers would face resuming normal operations after responding to the catastrophe. A large-scale catastrophe could create unprecedented demand for health care and emergency services. Hospitals already struggle to fulfill the high demand for and high costs of emergency care. Following a major disaster, hospitals would face additional financial challenges. Strained capacity and financial reserves, may force hospitals to ...


Harold G. Maier: A World Class Fellow Indeed, Kurtz Nov 2006

Harold G. Maier: A World Class Fellow Indeed, Kurtz

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Hal Maier has played many roles in my life: he has been my teacher, my boss, my advisor, my colleague, and most and best of all, my friend. In all those roles, he has exhibited enthusiasm, patience, tact, and brilliance. Not at all a bad combination, I would say. This is an article in tribute to Harold G. Maier.


The Rhetoric For Ratification: The Argument Of "The Federalist" And Its Impact On Constitutional Interpretation, Dan T. Coenen Nov 2006

The Rhetoric For Ratification: The Argument Of "The Federalist" And Its Impact On Constitutional Interpretation, Dan T. Coenen

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Courts, lawyers, and scholars have long assumed that The Federalist Papers supply important information for use in constitutional argument and interpretation. In recent years, commentators have questioned this view. Their skepticism grows out of two major concerns. First, Justice Scalia's challenge to the use of legislative history in the statutory context casts a cloud over judicial use of background texts such as The Federalist in seeking the meaning of the Constitution. Second, even if courts may rely on some background materials in interpreting the Constitution, there is reason to conclude that The Federalist does not qualify as the sort ...


The Problem Of Social Cost In A Genetically Modified Age, Paul J. Heald, James C. Smith Nov 2006

The Problem Of Social Cost In A Genetically Modified Age, Paul J. Heald, James C. Smith

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In Part I of this Article, we apply the Coase Theorem and its most useful corollary to the problem of pollen drift. We conclude that the liability of pollen polluters should be governed by balancing rules against nuisance law, to be applied on a case-by-case basis, rather than by a blanket liability or immunity rule. We also conclude that truly bystanding non-GMO farmers should have a viable defense to patent infringement because liability would result in the application of a reverse Pigovian tax that cannot be justified under accepted economic theory. Only a contextual approach can account for the wide ...


A Teacher's Teacher, Lonnie T. Brown Nov 2006

A Teacher's Teacher, Lonnie T. Brown

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This article is a tribute to Harold G. Maier which focuses on his career and his influence on Professor Brown.


The City Of God And The Cities Of Men: A Response To Jason Carter, Randy Beck Oct 2006

The City Of God And The Cities Of Men: A Response To Jason Carter, Randy Beck

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Law school seminars sometimes educate the professor as much as the students. That proved true for me in the spring of 2004, when seventeen law students and two colleagues from other departments joined me for a seminar focused on ancient and contemporary perspectives on law found within various Christian theological traditions. One seminar student who repeatedly spurred my own thinking was Jason Carter. Particularly thought provoking was the paper Jason presented in the final weeks of the seminar.

The returns from the 2004 election suggested that Jason had been unusually prescient in his analysis of U.S. religious and political ...


Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett Oct 2006

Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett

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An implicit dichotomy of the corporation exists in legal scholarship. On one side of the dichotomy rests the publicly held corporation suffering from a significant conflict of interest between its managers and dispersed shareholders; on the other side, the closely held corporation plagued by intershareholder conflict. This Article argues that understanding the agency problems that can exist within a firm demands a rejection of this traditional dichotomy and the theories of the firm built upon it. Using venture capital (VC) finance, this Article demonstrates how this dichotomy obscures how all firms -- public and private -- often face the same agency problems ...


The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West Oct 2006

The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West

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This Article begins the debate over the constitutional underprotection of autobiographical speech. While receiving significant historical, scientific, religious, and philosophical respect for centuries, the timehonored practice of talking about yourself has been ignored by legal scholars. A consequence of this oversight is that current free speech principles protect the autobiographies of the powerful but leave the stories of “ordinary” people vulnerable to challenge. Shifting attitudes about privacy combined with advanced technologies, meanwhile, have led to more people than ever before having both the desire and the means to tell their stories to a widespread audience. This Article argues that truthful ...


A Diversity Theory Of Charitable Tax Exemption -- Beyond Efficiency, Through Critical Race Theory, Toward Diversity, David A. Brennen Oct 2006

A Diversity Theory Of Charitable Tax Exemption -- Beyond Efficiency, Through Critical Race Theory, Toward Diversity, David A. Brennen

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Part I of the article presents Robin Paul Malloy's Law and Market Economy Theory (“LMT”) as an example of the basis for a normative explanation of the charitable tax exemption. LMT addresses the relationship among law, markets, and culture. Thus, using LMT, this part demonstrates how traditional law and economic analysis, premised on self-interest and wealth maximization, simply does not capture the essence of the many values that impact the marketplace and the market exchange process. Instead, LMT approaches legal analysis in a broader market context and is premised on the need to promote a process of sustainable wealth ...


The Seductive Comparison Of Shareholder And Civic Democracy, Usha Rodrigues Sep 2006

The Seductive Comparison Of Shareholder And Civic Democracy, Usha Rodrigues

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This Comment takes the common comparison of shareholder democracy and political democracy in a new direction by exploring the parallels between the board of directors and the Electoral College, examining both institutions in light of the differences between nation and corporation and their contrasting histories. Both are "once removed" representative democracies, because both systems only give the voters the right to vote for representatives who then select those who actually govern. The Comment next considers, with a critical eye, the underlying premise that shareholder and civic democracies can be compared at all, given the radically different nature of the corporate ...


Christian Faith And Political Life: A Dialogue [With Jason Carter], J. Randy Beck Sep 2006

Christian Faith And Political Life: A Dialogue [With Jason Carter], J. Randy Beck

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Several months before the 2004 presidential election, a seminar at the University of Georgia School of Law explored views of law and legal institutions reflected in various Christian theological traditions. The class included an unusually gifted group of students from a variety of theological and political backgrounds. One student brought a particularly unique and relevant set of experiences to the course. Jason Carter grew up as the grandson of Jimmy Carter, a former Democratic President who has often discussed the political implications of his Christian faith. Jason also observed first hand the interaction of Christian faith and political activity as ...


Same-Sex Marriage In New York, Lewis A. Silverman Aug 2006

Same-Sex Marriage In New York, Lewis A. Silverman

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No abstract provided.


Concurring In Part & Concurring In The Confusion, Sonja R. West Aug 2006

Concurring In Part & Concurring In The Confusion, Sonja R. West

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When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege--Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel on the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand ...


The Roberts Court: Year 1, Lori A. Ringhand Jul 2006

The Roberts Court: Year 1, Lori A. Ringhand

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This paper is an empirical analysis of the Supreme Court's recently-ended 2005 term, including an examination of the issues raised by, and the ideological direction of, the decisions issued by the Court. In addition to reviewing the work of the Court as a whole, the paper also separately examines the jurisprudence of new Justices Roberts and Alito. In doing so, it raises the possibility that these justices may have more in common with each other than with the Court's more established conservative members. The paper also demonstrates that the Court, pursuant to one of Justice Roberts' frequently stated ...


The Spirit Of Serrano: Past, Present And Future, Anne Dupre, John Dayton Jul 2006

The Spirit Of Serrano: Past, Present And Future, Anne Dupre, John Dayton

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A decades-long school funding revolution continues in the United States. The litigation sparked by the Supreme Court of California's 1971 decision in Serrano v. Priest continues to reshape the legal, political, and educational landscape in the United States, affecting the lives of children, parents, educators, and taxpayers throughout the nation. Serrano-inspired lawsuits have transformed school funding policies nationwide, resulting in billions of dollars in new funding and a notable redistribution of resources among school districts. Serrano-inspired litigation has changed public schools in many states to a degree second only to the transformation that followed Brown v. Board ...


On The Passing Of My Friend, Dick Wellman, Paul M. Kurtz Jul 2006

On The Passing Of My Friend, Dick Wellman, Paul M. Kurtz

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Writing the introduction to a symposium in memory of a friend is a great honor, of course, and one that I seized immediately, for fear that the Editor in Chief might change his mind.


The Status Of Administrative Agencies Under The Georgia Constitution, David E. Shipley Jul 2006

The Status Of Administrative Agencies Under The Georgia Constitution, David E. Shipley

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This Article discusses the place of administrative agencies under the Georgia Constitution. The rules of the Georgia Supreme Court on these issues, like the comparable rulings from the U.S. Supreme Court, make excellent reading for anyone interested in Georgia law, government, politics, and history. Most of the decisions surveyed in this Article are correct, but not necessarily for the reasons given by the Georgia Supreme Court. Some of the opinions offer comprehensive treatises on sections of the Georgia Constitution and aspects of administrative law, while others reach conclusions without much explanation. Some results are at odds with prior decisions ...


International Law And Rehnquist-Era Reversals, Diane Marie Amann Jun 2006

International Law And Rehnquist-Era Reversals, Diane Marie Amann

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In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended ...


The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin Jon Heller Apr 2006

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin Jon Heller

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It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarves. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation--a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another." Professor Levinson wants to find a workable balance between constitutional restraints and ...


Reconsidering The Corporate Attorney-Client Privilege: A Response To The Compelled-Voluntary Waiver Paradox, Lonnie T. Brown, Jr. Apr 2006

Reconsidering The Corporate Attorney-Client Privilege: A Response To The Compelled-Voluntary Waiver Paradox, Lonnie T. Brown, Jr.

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The Department of Justice (“DOJ”) has adopted guidelines that seem to make waiver of the attorney-client privilege and work product protection a prerequisite for being deemed “cooperative,” a significant designation that carries with it the prospect for more favorable penal treatment. In addition, the United States Sentencing Commission underscored the potential importance of such waivers by approving an amendment to the Federal Sentencing Guidelines in 2004 that, under certain circumstances, makes privilege waiver a factor in assessing a corporation's “culpability score,” which is used in determining the appropriate sentencing range.

This perceived ever-present concern has caused many corporate executives ...


The Entrepreneur And The Theory Of The Modern Corporation, Charles R.T. O'Kelley Apr 2006

The Entrepreneur And The Theory Of The Modern Corporation, Charles R.T. O'Kelley

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The foremost description of the classic entrepreneur, immediately prior to the Great Depression and now, was presented by Frank Knight in his seminal work, RISK, UNCERTAINTY, AND PROFIT. In this Article, I will explicate Knight's theory of the entrepreneur and show how it relates to both the Berle-Means Paradigm and the nexus-of-contracts theory of the corporation. My effort here is in part intellectual history and in part the tentative beginnings of a new positive account of the corporation. In the latter regard, this Article takes only the first step in what may prove a quite exhaustive effort to re-plow ...


The Antitrust Legality Of Pharmaceutical Patent Litigation Settlements, James F. Ponsoldt, W. Hennen Ehrenclou Apr 2006

The Antitrust Legality Of Pharmaceutical Patent Litigation Settlements, James F. Ponsoldt, W. Hennen Ehrenclou

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Several federal courts of appeal have recently ruled on the issue of whether a pharmaceutical patent infringement settlement, pursuant to which a generic drug manufacturer agrees to forgo marketing a particular drug in return for monetary payments from a patent-holding “pioneer” drug manufacturer, is a violation of antitrust law. These payments are termed “reverse payments” because, contrary to normal settlements, the plaintiff makes a lump sum payment to the defendant. Reverse payments have sparked considerable academic comment and controversy. Even more recently, the Federal Trade Commission (“Commission”) and the Solicitor General have expressed views on the issue, in the context ...


John Paul Stevens, Human Rights Judge, Diane Marie Amann Mar 2006

John Paul Stevens, Human Rights Judge, Diane Marie Amann

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This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese ...


Habeas Corpus And Baseball, Donald E. Wilkes Jr. Mar 2006

Habeas Corpus And Baseball, Donald E. Wilkes Jr.

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In the late 19th and early 20th centuries playing baseball on Sundays was a criminal offense in many states, where police often aggressively intervened to prevent or stop baseball games from being played on the Sabbath. In 1894, “the police of the city of Brooklyn took it upon themselves to chase, club and lock up all boys and men found playing ball on Sunday,” People ex rel. Poole v. Hesterberg, 43 Misc. 510, 89 N.Y.S. 498, 499 (N.Y. Sup. Ct. Kings County 1904); on two consecutive Sundays in July 1910, two professional baseball teams attempting to play ...


Is There A Bias Against Education In The Jury Selection Process?, Hillel Y. Levin, John W. Emerson Feb 2006

Is There A Bias Against Education In The Jury Selection Process?, Hillel Y. Levin, John W. Emerson

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Herbert Spencer famously said that a jury is “a group of twelve people of average ignorance.” That is not a particularly rosy picture of juror competence, but it presents a far better view than the one held by many -- if not most -- modern commentators. The more common contemporary sentiment was captured by Mark Twain when he wrote, in his inimitable style, “[w]e have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve [people] every day who don't know anything and can't read ...


Everything Lawyers Know About Polygamy Is Wrong, S. Crincoli (Sigman) Jan 2006

Everything Lawyers Know About Polygamy Is Wrong, S. Crincoli (Sigman)

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No abstract provided.


Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer Jan 2006

Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer

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No abstract provided.


Discrimination Cases In The October 2004 Term, Eileen Kaufman Jan 2006

Discrimination Cases In The October 2004 Term, Eileen Kaufman

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No abstract provided.